Massachusetts Appellate Court Upholds Finding that Injured Employee is Incapable of Performing Sedentary Work over Employer’s Objection that Judge was Biased

When you suffer an injury on the job, sometimes the damage is so severe that you are unable to resume your normal occupational duties. Part of the claims process involves examining your work capacity and determining the types of work that you would be capable of performing. This can be a critical step in the claim, especially if your injuries are so severe that returning to any type of work is out of the question. Our dedicated team of Boston work injury lawyers has assisted countless injured workers with ensuring that they are treated fairly during the benefit claims process.

Recently, a Massachusetts appellate court considered an appeal in which the insurer challenged an award of benefits to an employee who was attacked by a patient while working as a mental health worker. The woman underwent an independent medical examination as part of the claim review and the judge concluded that the attack was totally and permanently disabling to the point of preventing the employee from performing even sedentary jobs. According to the employer, the court rejected its vocational expert’s opinion that the employee could work as a telemarketer based on the judge’s alleged personal bias against the telemarketing industry.

According to the trial record, the judge stated that telemarketing jobs required employees to be aggressive and even obnoxious at times and that it was a difficult job. He stated that it was his policy to not consider telemarketing jobs when performing an occupational capacity assessment unless the person was a telemarketer to begin with. The employer did not object to the judge’s statements at the time they were made and raised the issue for the first time on appeal.

The appellate court first noted that any objection based on an alleged bias must be raised at the time it reveals itself otherwise the party who could have made the objection waives its right to challenge the biased conduct. Accordingly, the appellate court concluded that the employer waived its right to raise the bias issue on appeal.

Next, it noted that the judge adopted expert opinions indicating that the employee suffered from extensive physical limitations including only being able to lift two to five pounds and that she was unable to use her arm above chest level. She was also deemed incapable of performing repetitive tasks. This assessment, coupled with the employee’s history of heavy duty work, her history as a poor student, and her dyslexia indicated that her job prospects were dismal. Accordingly, the appellate court affirmed the lower court’s decision indicating that the woman was incapable of returning to work.

If you were injured on the job, you may be entitled to benefit payments and compensation for your medical expenses. Pulgini & Norton knows just how confusing the Massachusetts workers’ compensation process can seem and how hard it can be to know which steps you should take to preserve your legal rights. Our office offers a free consultation so that you can learn more about how we can help you and whether you may be eligible for benefits. Call us now at 781-843-2200 or contact us online.

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